Mangrum v. Wal-Mart Stores, Inc.

• Decision Date: 29 January 1997
• Docket Number: WAL-MART
• Citation: 950 S.W.2d 33
• Parties: Barbara MANGRUM, Plaintiff/Appellant, v.STORES, INC., Defendant/Appellee.
• Court: Tennessee Court of Appeals

Page 33

950 S.W.2d 33

Barbara MANGRUM, Plaintiff/Appellant, v. WAL-MART STORES, INC., Defendant/Appellee.

Court of Appeals of Tennessee,

Middle Section, at Nashville.

Jan. 29, 1997.

Appeal Denied July 14, 1997.

E. Covington Johnston, Jr., Franklin, for Plaintiff/Appellant.

Bradley Gilmore, Nashville, Charles A. Powell, III, Birmingham, for Defendant/Appellee.

OPINION

TODD, Presiding Judge, Middle Section.

The captioned plaintiff has appealed from the summary dismissal of her suit for age discrimination in her discharge from employment by the defendant.

Plaintiff presents a single issue for review, as follows:

Whether the Trial Judge erroneously granted the Defendant's Motion for Summary Judgment, and dismissed the plaintiff's case.

Defendant presents two issues, as follows:

I. Whether the factual findings of the Tennessee Department of Employment Security are entitled to preclusive effect under the doctrine of collateral estoppel thereby preventing the plaintiff from relitigating the reason for her termination.

2. Whether Wal-Mart is entitled to summary judgment based on the plaintiff's failure to produce any evidence that its legitimate nondiscriminatory reason for her termination is a pretext for age discrimination.

The complaint alleges violation of T.C.A.App. §§ 4-21-101, et seq, which constitute Chapter 21 of Title 4 entitled "Human Rights," of which Part 4 is designated "Employment Related Discrimination" and § 4-21-401 is entitled "Employer Practices." It reads as follows:

4-21-401. Employer practices.--(a) It is a discriminatory practice for an employer to:

(1) Fail or refuse to hire or discharge any person or otherwise to discriminate against an individual with respect to compensation, terms, conditions or privileges of employment because of such individual's race, creed, color, religion, sex, age or national origin; or

(2) Limit, segregate or classify an employee or applicants for employment in any way which would deprive or tend to deprive or tend to deprive an individual of employment opportunities or otherwise adversely affect the status of an employee, because of race, creed, color, religion, sex, age or national origin.

The complaint states:

3. Plaintiff began her employment with Defendant Wal-Mart in March of 1984. At the time of her discharge on May 17, 1989, she was a department manager.

4. In the fall of 1988, Defendant had two stores in the Franklin area. A new store was constructed and both older stores were to be consolidated therein.

5. Prior to the consolidation, Plaintiff and another employee (over 40) were told by their manager that Defendant Wal-Mart was going to have to weed out the older employees because they were too set in their ways.

6. When Plaintiff moved to the new store and took over as department manager, she was treated more harshly than other persons outside of the protective class. Management employees made false reports against her and found fault with her work as part of an effort to remove her from her job because of her age.

7. Plaintiff was discharged on the grounds of insubordination and the management officials gave false and misleading testimony against her when she applied for employment security benefits. These false and misleading statements were a continuation of the effort to have her removed from her employment.

The answer of defendant admits paragraphs 3 and 4 above, and admits paragraph 7 except that false and misleading statements and testimony are denied. The answer denies any unlawful discrimination against plaintiff.

At this stage of the proceedings, defendant's motion for summary judgment placed the burden upon defendant to produce uncontroverted evidence of a fact or facts which require dismissal of the complaint as a matter of law. T.R.C.P. Rule 56.03. Caledonia Leasing & Equipment Co., v. Armstrong, Allen, Braden, Goodman, McBride & Prewitt, Tenn.App.1992, 865 S.W.2d 10; Masters v. Rishton, Tenn.App.1992, 863 S.W.2d 702; Brown v. J.C. Penney Life Ins. Co., Tenn.App.1992, 861 S.W.2d 834.

Defendant insists that plaintiff is collaterally estopped to assert that she was discharged because of her age because her claim for unemployment compensation by the Department of Employment Security was denied because of a finding that she was discharged for insubordination.

The record contains certified copies of records of the Department of Employment Security, including the decision of the Board of Review which states:

FINDING OF FACT: The claimant's most recent employment prior to filing this claim, was as a department manager for Wal-Mart, Franklin, Tennessee, from March 30, 1984, until May 17, 1989, when she was discharged for insubordination. As department manager, the claimant was responsible for maintaining orderly merchandise racks. Previously she had been counseled for failure to maintain the proper order and again on May 16, 1989, two assistant managers met with the claimant in an attempt to counsel her on this subject. During the meeting, the managers at all times spoke to her in quiet respectful tones. In response, the claimant was loud, irate, disrespectful and used expressions containing emphatic, vulgar slang. She informed the assistant managers that she would not allow them to counsel her. When presented with a counseling form, she refused to look at it or sign it. The assistant managers told her that they were sending her home for the remainder of the shift and she angrily responded that she would not go home. She left the office in a loud, irate manner before the conclusion of the meeting. On the following day, she was discharged because of her insubordinate behavior.

CONCLUSIONS OF LAW: After carefully considering the entire record in this case, including the additional evidence received during the Board of Review hearing, we find that the claimant was discharged from her most recent employment for misconduct connected with work under TCA 50-7-303(a)(2). The additional evidence received during the Board of Review hearing consisted primarily of a tape recording of the May 16, 1989, meeting which was supplied by the claimant. The recording showed obvious signs of interference or tempering and did not contain certain specific curses that the managers accused the claimant of uttering during the meeting. However, even without reported evidence of these specific remarks, the claimant's general demeanor and language, as revealed on the tape, are clearly insubordinate and highly inappropriate to the discussion the assistant managers were attempting to have with her. Her behavior, under the circumstances, was misconduct connected with work and causes this claim for benefits to be rejected.

DECISION: The decision of the Appeals Tribunal, which rejected this claim under TCA 50-7-303(a)(2), is affirmed.

In Morris v. Esmark Apparel, Inc., Tenn.App.1991, 832 S.W.2d 563, the plaintiff sued for breach of employment contract by discharge without cause. The Trial Court summarily dismissed because the Department of Employment Security had denied unemployment benefits based upon a finding that the plaintiff was discharged for misconduct connected with his work. This Court affirmed and said:

In 1996 the U.S. Supreme Court expressly applied the doctrine in the administrative law context, stating:

When an administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, the courts have not hesitated to apply res judicata to enforce repose. (Citations omitted)

United States v. Utah Construction & Mining Co., 384 U.S. 394, 422, 86 S.Ct. 1545, 1560, 16 L.Ed.2d 642 (1966).

Subsequently, in the case of Univ. of Tenn. v. Elliott, 478 U.S. 788, 106 S.Ct. 3220, 92 L.Ed.2d 635 (1986), that court held:

....[W]e hold that when a state agency "acting in a judicial capacity ... resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate," [U.S. v.] Utah Construction & Mining Co., supra, 384 U.S. , at 422, 86 S.Ct. [1545], at 1560, [16 L.Ed.2d 642 (1966) ] federal courts must give the agency's fact finding the same preclusive effect to which it would be entitled in the State's courts.

The doctrines of res judicata and collateral estoppel are applicable to give conclusive effect to quasi-judicial determinations of administrative agencies. See, Ryan v. New York Telephone Co., 62 N.Y.2d 494, 478 N.Y.S.2d 823, 467 N.E.2d 487 (1984); Bostwick v. Atlas Iron Masters, Inc. 780 P.2d 1184 (Okla.App.1988); Bresnahan v. May Department Stores Co., 726 S.W.2d 327 (Mo.-Banc 1987).

In 1993, the General Assembly enacted Chapter 169, Public Acts of 1993 which added to T.C.A. § 50-7-304, a new subsection K, reading as follows:

(k) Conclusiveness of Findings. No finding of fact or law, judgment, conclusion, or final order made with respect to a claim for unemployment compensation under this chapter may be conclusive in any separate or subsequent action or proceeding in another forum, except proceedings under this chapter, regardless of whether the prior action was between the same or related parties or involved the same facts.

The applicability of this amendment must be decided upon the following facts:

Plaintiff was discharged on May 17, 1989. On September 27, 1989, the State Department of Employment Security Board of Review denied plaintiff's claim for unemployment compensation, finding that plaintiff was discharged for insubordination constituting misconduct. The present complaint was filed on May 16, 1990. On August 16, 1990, defendant filed a motion for summary judgment supported by certified records of the Unemployment Compensation proceeding, the complaint, the answer, and a memorandum of law. There was no affidavit of any official of the defendant regarding the discharge or the reason therefor. This motion was based entirely upon the preclusive effect of the finding of the State Department of...